Nguyen (Migration)

[2019] AATA 6672

Nguyen (Migration) [2019] AATA 6672 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Chi Nguyen
Mr Hoang Khanh Le
Ms Hoang Yen Le
Ms Hoang Uyen Le

CASE NUMBER:  1830936

HOME AFFAIRS REFERENCE(S):          BCC2017/2345237

MEMBER:Sheridan Lee

DATE:29 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the requirements of cl.186.222 of Schedule 2 to the Migration Regulations 1994.

Statement made on 29 October 2019 at 3:42pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant Manager – English language proficiency – Vocational English – did not undertake a specified language test – class of exempt persons – English tuition requirement – ‘higher education institution’ – education provider registered by TEQSA – TEQSA National Register for Providers and Courses – departure from Departmental policy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15B; Schedule 2, cl 186.222
Tertiary Education Quality and Standards Agency Act 2011 (Cth), s 5

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because she did not have vocational English and was not in a class of persons specified by the Minister in the relevant migration instrument.

6. The applicant appeared before the Tribunal on 16 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughters and secondary visa applicants, Ms Hoang Yen Le and Ms Hoang Uyen Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in the relevant legislative instrument: cl.186.222. For visa applications made before 1 July 2017 the level required is vocational English.

10. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

11. The applicant has conceded that at the time of application she did not meet the requirements of the above definition. She has instead claimed to be in the class of exempt persons specified by the Minister in writing. Relevantly, immigration instrument 15/083 specifies:

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

12. Whilst the exemption in IMMI 15/083 refers to full-time study in a ‘higher education institution’, this term is not defined in either the Act or Regulations.

13. According to the Macquarie Dictionary online, the term ‘higher education’ is defined to mean ‘education beyond secondary education’. It also defines ‘institution’ to mean:

    1.  An organisation or establishment for the promotion of a particular object, usually one for some public, educational, charitable, or similar purpose.

    2.  A building used for such work, as a college, school, hospital, mental hospital, or the like.

    3.  A concern engaged in some activity, as an insurance company.   

14. The ordinary dictionary meaning of both ‘higher education’ and ‘institution’ suggests that a ‘higher education institution’ is an institution that provides education services after secondary school. However, the Tribunal notes that this dictionary-based definition does little to differentiate between the types of institutions that deliver post-secondary school education. 

15. In terms of what kind of institution, or provider of education services, will constitute a ‘higher education institution’, Departmental policy provides the following guidance:

    5 years or more full-time study in secondary and/or higher education, with all tuition in English

    Higher education is understood to mean tertiary studies at university or equivalent level. Vocational educational training courses (VET) where course requirements comprise a mixture of classroom tuition and on-the-job training cannot be accepted. Also not acceptable are English language courses undertaken for the specific purpose of obtaining an IELTS or equivalent score.

    The applicant must have undertaken all studies, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English.

    The required total of five years can consist of full-time study at secondary (high-school) level only; or it can be a mixture of secondary and tertiary studies; or it can consist of university level-equivalent study only, comprising a mixture of undergraduate (Bachelor) and graduate (Masters and/or Doctoral) studies.

16. The Tribunal accepts the Departmental policy as a valid starting point for assessing what constitutes study in a higher education institution. However, it is not finally determinative of the issue.

17. The Tertiary Education Quality and Standards Agency (‘TEQSA’) is Australia’s independent national quality assurance and regulatory agency for higher education. It has responsibility for the registration of higher education providers and accreditation of higher education courses under the Tertiary Education Quality and Standards Agency Act 2011 (‘the TEQSA Act’). TEQSA maintains the National Register for Providers and Courses as an authoritative source of information on the status of registered higher education providers in Australia.

18. The TEQSA website outlines that all organisations that offer higher education qualifications in or from Australia, must be registered by TEQSA. The Australian higher education sector includes public and private universities, Australian branches of overseas universities and other higher education providers. Higher education providers offer qualifications ranging from undergraduate awards (bachelor degrees, associate degrees and advanced diplomas) to postgraduate awards (graduate certificates and diplomas, masters and doctoral degrees).

19. Although the TEQSA Act does not specifically define the concept ‘higher education institution’, section 5 of this Act defines a ‘higher education provider’ to mean a person or corporation that offers or confers a regulated higher education award. In turn, the TEQSA Act defines a ‘higher education award’ to be a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree, doctoral degree or qualification covered by level 5 or above under the Australian Qualifications Framework. The definition specifically excludes an award offered or conferred for the completion of a vocational education and training course. 

20. As a consequence, not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. Those education institutions seeking to provide services in the higher education sector are required to be registered by TEQSA as a higher education provider.

21. Similarly, the Australian Skills Quality Authority (ASQA) is the national regulator for the VET sector under the National Vocational Education and Training Regulator Act 2011 (‘the National VET Act’). The providers of VET include technical and further education (TAFE) institutes, adult and community education providers and agricultural colleges, as well as private providers, community organisations, industry skill centres, and commercial and enterprise training providers. In addition, some universities and schools provide VET.

22. For the purposes of interpreting IMMI 15/083, the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’ and the responsibilities of TEQSA and ASQA, as well as the policy guidelines.

23. On the basis of this evidence, the Tribunal is of the view that the term ‘higher education institution’ in Australia refers to an education provider that is registered by TEQSA for this purpose, rather than an education provider registered by ASQA for the VET sector.

24. Nothing in the wording of clause 186.222(b) or the legislative instrument limits the availability of the ‘higher education’ exemption to only those who have undertaken a bachelor or higher level course of study at a university.

25. Accordingly, to the extent that the Departmental policy suggests that only study at a university level at the undergraduate bachelor or graduate level can constitute study in a ‘higher education institution’, the Tribunal finds that the policy goes beyond the wording of the legislation. Given this, the Tribunal is satisfied that there are cogent reasons to depart from it in this respect.

26. The applicant provided the Department with copies of certificates issued by Holmes Institute as evidence to demonstrate that she completed Certificate IV in Hospitality (Commercial Cookery) and a Diploma of Hospitality at the Holmes Institute. She further enrolled in, but did not complete, Certificate IV in Business, a Diploma of Management and a Diploma of Accounting. Academic transcripts showing completion of four units in the Certificate IV in Business and 1 unit in the Diploma of Management were supplied to the Department.

27. The applicant has supplied the Tribunal with a letter from David Mustafa, Campus Director at Homes Institute, dated 15 October 2019. The letter outlines that the applicant had a combined enrolment over the period commencing September 2008 to March 2015 totalling more than 5 years. The letter confirms that the applicant was enrolled full-time and the program delivery was in English.

28. The Tribunal has confirmed that Homes Institute appears on the TEQSA National Register for Providers and Courses as a higher education provider. While the applicant did not achieve the qualifications she enrolled in, the Tribunal is satisfied that she completed five years of full time study in a higher education institution where all of the tuition was delivered in English. As such, the applicant meets the requirements of cl.186.222(b). Therefore, cl.186.222 is met.

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

30. As the second, third and fourth named applicants applied on the basis of being a member of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

31. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the requirements of cl.186.222 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Lee
    Member